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Dominic S. Ali v. Richard M. Gerry

November 5, 2012

DOMINIC S. ALI
v.
RICHARD M. GERRY, WARDEN, NEW HAMPSHIRE STATE PRISON



The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge

ORDER

Before the court is Ali's motion to amend (doc. no. 8) his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Ali seeks leave to add allegations to and clarify an ineffective assistance of counsel claim in the petition. The motion is granted, and the facts and new claims asserted in the motion, summarized below, are added to Ali's § 2254 petition.

For reasons stated below, the court finds that Ali has not yet demonstrated exhaustion of his state court remedies, and directs Ali to so demonstrate by November 26, 2012, to comply with this order and the court's October 10, 2012, Order (doc. no. 7). In the alternative, Ali may timely file a motion to extend the deadline for demonstrating exhaustion, or a motion to stay his federal habeas petition in order to exhaust his claims, on or before November 26, 2012.

I. Facts and Claims Added to Petition

A. Facts Added to Petition

The following facts asserted in the motion to amend (doc. no. 8) are added to Ali's § 2254 petition (doc. no. 1)*fn1

Attorney Anthony Introcaso was appointed to represent Ali after trial counsel from the New Hampshire Public Defender's Office was allowed to withdraw from the case. Before trial counsel withdrew, her office had prepared a memorandum for use in Ali's sentencing. The memorandum proposed a sentence for Ali that was substantially less than that requested by the state. The memorandum included a discussion of mitigating factors to support the imposition of the proposed sentence and also noted the immigration consequences of a prison sentence for Ali. Ali alleges that Attorney Introcaso did not review the memorandum or make the recommendations and information contained therein to the trial judge, and did not prepare or offer the court any sentencing proposal on Ali's behalf.

Ali further asserts that Attorney Introcaso did not review the probation office's presentence investigation report ("PSI"), and that he failed to give Ali a copy of the PSI prior to the sentencing hearing. Ali asserts that the trial court never verified whether Ali had read and discussed the report with Attorney Introcaso. Ali asserts that the PSI falsely stated that he had two prior convictions, and that the PSI's sentencing recommendation was based in part on charges or allegations of wrongdoing of which Ali was not convicted, or as to which Ali's conviction was vacated on appeal. Ali asserts that the trial judge based Ali's sentence on the PSI, and did not make any findings independent of the PSI.

Additionally, Ali asserts that Attorney Introcaso knew that trial counsel had never advised Ali before trial of the improbability of acquittal and the benefits of accepting a plea bargain. Ali further alleges that Attorney Introcaso visited him in jail in September 2008 and told him, "five years is a walk on the beach in the state prison," his trial attorneys were young and inexperienced, the prosecutor engaged in misconduct and discriminated against "blacks," and the trial judge was both the prosecutor's friend and was also prejudiced.

B. Claims Added to Petition

Claim 7, identified in this court's October 10 Order (doc. no. 7), is modified by facts asserted in the motion to amend (doc. no. 8).*fn2 The additions to Claim 7 are underlined:

7. Counsel appointed for the sentencing proceeding, Attorney Introcaso, provided ineffective assistance, in violation of Ali's Sixth Amendment right, in that counsel:

A. Failed to challenge the PSI's incorrect statement of Ali's prior criminal record, which improperly listed two prior convictions, and ...


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